Possession And Boundaries

Possession, Fence Lines and Boundaries in California

In this article I will set out arguments to show that a Licensed Land Surveyor in California determines property lines and also how fences and occupation enter into his determination.

According to the PLS Act section 8726 (c) surveyors are licensed in the State of California to "locate, relocate, establish, re-establish or retrace any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries". This statement authorizes those who possess a valid California License as Land Surveyor to actually and physically place in the ground monuments and stakes which represent the opinion of the surveyor as to the boundary or ownership (property line) of his client. As we know, the grant deed (or other type of conveyance) is the principal document that provides a written description of the extent of the property that was intended to be conveyed.

Based on what is written in the deed as well as any other item of evidence that may apply (I.e. extrinsic evidence, oath, etc.) the surveyor determines by various means of research, examination, measurement and calculation the location of the lines written in the deed. This is implied in the PLS act at Section 8726 (e) which states "By the use of the principles of land surveying determines the position for any monument or reference point which marks a property line boundary or corner, or sets, resets or replaces any such monument or reference point."

"The principles of land surveying" encompass a variety of important aspects including:

1. History of boundaries, laws relating to boundaries, their establishment and meaning.

2. Statutes of the State of California concerning boundaries.

3. Opinions of courts of Law.

We are all aware that property boundaries can be argued in a court of law and after the initial decision is administered, it can be appealed. In the few cases In which I have been retained as an expert witness, none of which ever made it to the appeal process, I found that some of the local the judges and attorneys in the County Courts were not well versed in applying the "principles of land surveying". I basically needed to educate the attorneys with what I knew about the issues involved and then hope that the judge would understand what was being discussed. However, as I stated, only a few of the surveys that I have been involved with ever went to court. Of the 937 recorded surveys I have been responsible for only 4 were actually disputed in court. So in practicality, because landowners have been depending and using the corner monuments and line stakes that I have set, I, the surveyor, have for all intents and purposes become the final say on those boundary lines. I am not saying that each and every decision I have made would be the same that a court of law might determine. But since the court most likely will never have the opportunity to do so, the monuments I set have become the property line.

In this article I will attempt to go into detail concerning just a portion of the "principles of land surveying". In doing so, the reader should realize that no one can fully explain all of these principles in one article or probably in even one book. However, using the information provided here and elsewhere it is hoped that a better understanding of the "principles of land surveying" will be gained and applied in your important work.

When I began surveying, one of the most mysterious aspects of boundary surveying was how did my employer, a licensed surveyor, determine when he would hold a fence line or corner? Here are some of the basic ideas that I have developed in this area.

1. There is a good possibility that a fence corner is at or near the property corner. This may sound simple and it is. When we go out in the field to recover evidence of a boundary where do we usually look first? The fence corner. Of course, for you readers who are looking for loopholes, this does not mean we ignore other typical areas where monuments exist such as centerline intersections or next to steel fence posts with ribbon on them. But the fence corner is usually erected by the landowner or developer and placed just inside the lot corners.

Based on my personal experience and on what I have read, this practice has, in general, been followed for a long time by prudent landowners who made an effort to perpetuate the location of their property boundaries. In time, many of the actual corner monuments and accessories (in the case of GLO surveys) have deteriorated, been destroyed or otherwise been lost, leaving the fence corner to remain. In some cases, the fence corners and much of the fence lines have also been removed or destroyed leaving very little evidence at all. Of course, when we surveyors go out in the field we look for whatever evidence is left that may help us re-create the location of the corners of the property. In city surveys, curb lines may provide evidence of the location of street centerlines and in turn, lot lines. But how can we be certain that the fence lines or other evidence of occupation represents the lines shown in our deed or record map?

Here is where we need some common sense and the ability to evaluate conflicting information. Have we located any original monuments, replacements of the originals, or other artificial items that may be at the location of the original corners. Our ability to see the difference between these and to assign the proper weight to their quality should be added to the entire mixture. Even if the more certain monuments are distant from our own subject property, they can be helpful in our evaluation. For example, in one survey, there was a map prepared in the 1920's wherein scribed stakes had been set to delineate the lot corners and angle points in the right of way. We found no original stakes at or near our subject property. However, from available recorded maps, other surveyors had found original stakes and perpetuated them with iron stakes and pins. Even though none of these were used to determine the boundary, they verified for us that original stakes had indeed been set by the original surveyor at those locations and greatly increased our belief that original stakes had also been set at the corners of our parcel and adjacent properties. Also, the dimensions returned by the retracement surveyors of those found original stakes taught us something about the quality of the measurements of the original surveyor, which in this case, was in the neighborhood of 1:600 to 1:800. Using this information, we used two separate maps, each of which showed a fence corner accepted as an original lot corner at the right of way of the County Road. Even though these two fence corners were about 4000 feet apart, using record dimensions rotated to fit between the two monuments (rotated compass rule adjustment) the error was about 6 feet. This was consistent with the expected quality that we had found with other found monumentation as discussed earlier. Both fence corners were similar in age (old posts and wire, deteriorated but still functioning). The fence lines that terminated at the corners ran straight and on bearings consistent with the original map. The other angle points and opposing right of way were calculated from these two fence corners. There were some other monuments found in the area set by another surveyor but without the strength and consistency in the fence corners and were rejected.

This simplified description of a retracement illustrates how fence corners can be used to ascertain the location of boundaries. Each fence corner must be evaluated and checked with other evidence before we decide to accept it as the original location of the lot corner. Additionally, even if we determine that the fence corner is at the location of the original corner, this does not mean that the fence line is also on the true line. Do we have solid evidence showing that the fence line follows the line actually run by the original surveyor? If not, we must usually resort to holding the fence corners and running a straight line between them, ignoring the fence in between. In many cases, the fence line very closely follows the straight line between the corners but depending on the terrain (level vs. hilly, brushy or tree covered) the direction of the fence line could deviate from this line.

Many landowners measured the location of their property lines themselves and erected fences near the location of the true corner. Generally speaking, we know that in sectionalized land, the only original corners set by the GLO were the section and quarter-section corners. Therefore, in most cases, the only fence corners that actually represent the missing corners are usually at the section or quarter corners since these corners were the only ones where actual monuments were set. Unless we can prove otherwise, fence corners found near interior corners (center of section and 1/16th corners) are usually not at the actual location of the deed corners since they were never properly determined by typical section breakdown and subsequently set by a land surveyor.

Sometimes, the fence corners are missing and all we have are portions of fence lines. By locating the fences and intersecting them with each other, we may be able to use them to determine the original locations. Of course, if we were to find other evidence to the contrary (old iron pipe, roads, testimony) then this must also be evaluated.

When it comes to testimony, it is always helpful to talk to the landowners who have lived in the area for a long time. Some may be able to remember whether or not the previous landowners knew anything about surveying, monuments, fence lines, etc. By interviewing them we may be able to gain valuable information that we can use in our determination. It is not just a matter of them simply remembering the exact location of a corner stake. Whatever light they can shed on the subject: Do they remember seeing or hearing of original monuments in general? Did their deceased relatives have knowledge of them? What was their method of determining the boundary of their property? Did they ever set fence lines at locations other than at the boundaries of the property?

Ranchers have been in the habit of erecting "drift" fences, fences that are placed to keep cattle in a certain area. These fences may be along tops of ridges or more convenient locations. These "drift" fences should not be confused with fences placed on boundaries. Sometimes, a fence corner is near a corner but not actually at the corner. Perhaps the landowner knew the corner was in the area but not exactly its location. Many times, after searching near an old fence corner, original bearing trees and other accessories have been found nearby which establish the original monument location.

On the central coast of California, there were subdivisions done between 1880 and 1920 wherein the original scribed stakes have long been destroyed. However, solid, straight fence lines remain which when measured agree with the record locations of the lots. Of course, if we do find original monumentation or replacements, these should be accepted. However, old fence lines are often solid evidence of the original locations.

In conclusion, when little or no original monumentation is found, lines of possession including fences, curbs and buildings may often provide conclusive proof of the location of boundaries.

Ken Wilson

Wilson Land Surveys Inc.

Professional Land Surveyor, California License #5571